IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF OHIO

EASTERN DIVISION

Larry R. Caldwell,

Plaintiff,

v. Case No. 2:11-cv-182

The PNC Financial Services

Group, Inc., et al.,

Defendants.

OPINION AND ORDER

This is an action filed by plaintiff Larry R. Caldwell against

PNC Financial Services Group, Inc., and PNC Bank (collectively

“PNC”), the National City Corporation Amended and Restated

Management Severance Plan (“the Plan”), Kerry Allen, a Plan

administrator, and John Does 1-10. Plaintiff alleges that he was 

an employee of National City Bank (“National City”) as of December

3, 2008, when PNC acquired National City in a change of control. 

Complaint, ¶¶ 23-24. Plaintiff further alleges that he was a

participant in the Plan. Complaint, ¶ 6. The Plan, attached as

Exhibit A to defendants’ motion to dismiss, became effective on

January 1, 2005, and was amended effective September 30, 2008. The

Plan was designed to provide severance benefits to certain National

City employees in the event National City was acquired by another

entity.

Plaintiff contends that following PNC’s acquisition of

National City, plaintiff was assigned to three branches, two of

which were located in financially depressed areas of Columbus,

Ohio. Complaint, ¶ 25. Plaintiff alleges that PNC made no

allowance for the viability of plaintiff’s territories in setting

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his loan goals, which were based on plaintiff’s salary. Complaint,

¶ 26. Plaintiff alleges that he was given a formal warning in

April of 2009 for failing to meet his loan goals, and that he was

given a second warning and placed on a performance improvement plan

in July of 2009. Complaint, ¶¶ 27, 29. Plaintiff contends that

in May and June of 2009, PNC realigned the territories of employees

who occupied positions similar to that held by plaintiff, but did

not grant plaintiff’s request to assign him additional territories. 

Complaint, ¶ 28. Plaintiff alleges that he was given a third

warning on August 12, 2009, and that Ron Byers requested that

plaintiff voluntarily resign from his employment. Complaint, ¶¶

30-31. Plaintiff alleges that he was given a fourth warning on

August 27, 2009, and that his supervisor, Don Guilbert, requested

that plaintiff resign and told him that if he did not, he would be

placed on probation effective September 1, 2009. Complaint, ¶¶ 32-

33. Plaintiff was placed on probation on December 10, 2009, but

despite the fact that plaintiff’s loan goals were not met, PNC did

not terminate plaintiff’s employment. Complaint, ¶¶ 44-49. 

Plaintiff resigned from his position effective January 29, 2010. 

Doc. 7, Ex. B.

After his resignation, plaintiff sought to recover severance

benefits from the Plan, contending that he had been constructively

discharged. Complaint, ¶¶ 51-53. The Plan denied plaintiff’s

claim for benefits, and plaintiff’s appeal from that decision was

denied. Doc. 7, Ex. F. Plaintiff then filed his complaint in the

instant case. In Count 1 of the complaint, plaintiff asserts a

claim for breach of contract due to the denial of severance

benefits. Count 2 advances a claim of age discrimination under

Ohio Rev. Code Chapter 4112. Count 3 asserts a claim for benefits

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under the Employee Retirement Income Security Act (“ERISA”), 29

U.S.C. §1132(a)(1)(B). Count 4 asserts that PNC acted with the

intent to interfere with plaintiff’s rights under the Plan in

violation of 29 U.S.C. §1140. In Count 5, plaintiff alleges that

the defendants failed to grant his request for Plan documents in

violation of 29 U.S.C. §1132(c). This matter is before the court

on the motion of defendants to dismiss Counts 1, 3, 4 and 5 of the

complaint pursuant to Fed. R. Civ. P. 12(b)(6) for failure to state

a claim for which relief may be granted.

I. Standards for a Rule 12(b)(6) Motion

In ruling on a motion to dismiss under Rule 12(b)(6), the

court must construe the complaint in a light most favorable to the

plaintiff, accept all well-pleaded allegations in the complaint as

true, and determine whether plaintiff undoubtedly can prove no set

of facts in support of those allegations that would entitle him to

relief. Erickson v. Pardus, 551 U.S. 89, 94 (2007); Bishop v.

Lucent Technologies, Inc., 520 F.3d 516, 519 (6th Cir. 2008);

Harbin-Bey v. Rutter, 420 F.3d 571, 575 (6th Cir. 2005). To

survive a motion to dismiss, the “complaint must contain either

direct or inferential allegations with respect to all material

elements necessary to sustain a recovery under some viable legal

theory.” Mezibov v. Allen, 411 F.3d 712, 716 (6th Cir. 2005). 

Conclusory allegations or legal conclusions masquerading as factual

allegations will not suffice. Id.

While the complaint need not contain detailed factual

allegations, the “[f]actual allegations must be enough to raise the

claimed right to relief above the speculative level,” Bell Atlantic

Corp. v. Twombly, 550 U.S. 544, 555 (2007), and must create a

reasonable expectation that discovery will reveal evidence to

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support the claim. Campbell v. PMI Food Equipment Group, Inc., 509

F.3d 776, 780 (6th Cir. 2007). A complaint must contain facts

sufficient to “state a claim to relief that is plausible on its

face.” Twombly, 550 U.S. at 570. “The plausibility standard is

not akin to a ‘probability requirement,’ but it asks for more than

a sheer possibility that a defendant has acted unlawfully.” 

Ashcroft v. Iqbal, 556 U.S. 662, 129 S.Ct. 1937, 1949 (2009). 

Where a complaint pleads facts that are merely consistent with a

defendant’s liability, it stops short of the line between

possibility and plausibility of entitlement to relief. Id. 

Determining whether a complaint states a plausible claim for relief

is “a context-specific task that requires the reviewing court to

draw on its judicial experience and common sense.” Id. at 1950. 

Where the facts pleaded do not permit the court to infer more than

the mere possibility of misconduct, the complaint has not shown

that the pleader is entitled to relief as required under

Fed.R.Civ.P. 8(a)(2). Ibid.

In evaluating a motion to dismiss, a court generally is

limited to the complaint and exhibits attached thereto. Amini v.

Oberlin College, 259 F.3d 493, 502 (6th Cir. 2001). Most materials

outside the pleadings may not be considered in ruling on a 12(b)(6)

motion to dismiss unless the motion is converted to one for summary

judgment under Fed.R.Civ.P. 56. Jackson v. City of Columbus, 194

F.3d 737, 745 (6th Cir. 1999), abrogated on other grounds,

Swierkiewicz v. Sorema N.A., 534 U.S. 506 (2002); Weiner v. Klais

& Co., Inc., 108 F.3d 86, 88 (6th Cir. 1997). However, the court

may consider a document or instrument which is attached to the

complaint, or which is referred to in the complaint and is central

to the plaintiff’s claim. Fed.R.Civ.P. 10(c)(“[a] copy of any

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written instrument which is an exhibit to a pleading is a part

thereof for all purposes”); Weiner, 108 F.3d at 89.

Plaintiff does not oppose defendants’ motion to dismiss Count

5 of the complaint. Accordingly, Count 5 will be dismissed.

II. Count 1 - Breach of Contract

Defendants argue that plaintiff’s state law breach of contract

claim should be dismissed because it is preempted by ERISA. Under

29 U.S.C. §1144(a), ERISA supersedes “any and all State laws

insofar as they may now or hereafter relate to an employee benefit

plan.” §1144(a). “Any state-law cause of action that duplicates,

supplements, or supplants the ERISA civil enforcement remedy

conflicts with the clear congressional intent to make the ERISA

remedy exclusive and is therefore pre-empted.” Aetna Health Inc.

v. Davila, 542 U.S. 200, 209 (2004). The Sixth Circuit has noted

that “virtually all state law claims relating to an employee

benefit plan are preempted by ERISA.” Cromwell v. EquicorEquitable HCA Corp., 944 F.2d 1272, 1276 (6th Cir. 1991)(holding

that plaintiffs’ breach of contract claim for failure to pay plan

benefits was preempted by ERISA).

Plaintiff argues in response that his breach of contract claim

is not preempted because the Plan is not an ERISA employee welfare

benefit plan.1 The definition of an employee welfare benefit plan

includes a plan established or maintained by an employer for the

1Paragraph 73 of the complaint states, “The Plan is a welfare plan governed

by ERISA.” Defendants argue that plaintiff is bound by this statement as an

admission. See Shell v. Parrish, 448 F.2d 528, 530 (6th Cir. 1971). However,

plaintiff stated at the beginning of his complaint that he was asserting a claim

under state law as well as ERISA claims because he anticipated a dispute

concerning whether the Plan was an ERISA plan. Complaint, ¶ 3. Plaintiff is

entitled to plead claims for relief in the alternative. Fed.R.Civ.P. 8(a)(3). 

While paragraph 73 might be an admission for purposes of the ERISA claim, the

court will not consider paragraph 73 as an admission for purposes of the

preemption issue.

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purpose of providing “(A) benefits in the event of ... unemployment

... or (B) any benefit described in section 186(c) of this title.” 

29 U.S.C. §1002(1). Since 29 U.S.C. §186(c) refers to severance

benefits, the Sixth Circuit has held that severance plans are

included in the definition of 29 U.S.C. §1002(1)(B). See Shahid v.

Ford Motor Co., 76 F.3d 1404, 1409 (6th Cir. 1996). The Supreme

Court has also held that “plans to pay employees severance

benefits, which are payable only upon termination of employment,

are employee welfare benefit plans.” Massachusetts v. Morash, 490

U.S. 107, 116 (1989).

However, the Sixth Circuit has held that not all severance pay

plans are ERISA plans. Swinney v. General Motors Corp., 46 F.3d

512, 517 (6th Cir. 1995). In order to determine whether a

severance plan is an ERISA plan, the court “must look to the nature

of the plan itself.” Kolkowski v. Goodrich Corp., 448 F.3d 843,

848 (6th Cir. 2006).2 An employee benefit program is regulated by

ERISA only if it is administered through a “plan, fund, or program”

established to provide benefits under any of the covered

categories. Sherrod v. General Motors Corp., 33 F.3d 636, 638 (6th

Cir. 1994). In determining whether a “plan, fund, or program”

exists, a court should focus on whether the employee benefit

requires an administrative scheme to execute. Id. “The hallmark

of an ERISA benefit plan is that it requires ‘an ongoing

2The fact that the Plan provides that “[t]he validity, interpretation,

construction and performance of this Plan will be governed by and construed in

accordance with the substantive laws of the State of Delaware” is not conclusive. 

“It is not the label placed on a state law claim that determines whether it is

preempted, but whether in essence such a claim is for the recovery of an ERISA

plan benefit.” Cromwell, 944 F.2d at 1276. This court may consider both federal

common law and state law contract principles in interpreting an ERISA plan, see

Perez v. Aetna Life Ins. Co., 150 F.3d 550, 556 (6th Cir. 1998), and may take the

drafters’ preference that the Plan be construed in accordance with Delaware law

into account.

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administrative program to meet the employer’s obligation.’” 

Swinney, 46 F.3d at 517 (quoting Fort Halifax Packing Co. v. Coyne,

482 U.S. 1, 11 (1987)). The factors employed by the Sixth Circuit

to determine if a severance agreement plan meets the Fort Halifax

criteria are: 1) whether the employer has discretion over the

distribution of benefits; and 2) whether there are on-going demands

on an employer’s assets. Kolkowski, 488 F.3d at 848.

In regard to the first factor, employer discretion, a court

considers whether the plan administrator made individualized

determinations of eligibility, as opposed to those that require

automatic or simple decisions. Id. Simple or mechanical

determinations regarding the distribution of benefits do not

satisfy the first factor. See Cassidy v. Akzo Nobel Salt, Inc.,

308 F.3d 613, 616 (6th Cir. 2002); Nelson v. General Motors Corp.,

156 F.3d 1231 (table), 1998 WL 415993 at *3 (6th Cir. July 7,

1998)(severance plan was not an ERISA plan where the amount of

benefits was pre-determined through the collective bargaining

process and employer did not exercise any discretion in executing

the plan or determining the eligibility of employees to

participate). However, “if to determine benefits the employer must

“analyze each employee’s particular circumstances in light of the

appropriate criteria,’ the severance plan is probably an ERISA

plan.” Cassidy, 308 F.3d at 616 (quoting Sherrod, 33 F.3d at 639-

39).

As to the second factor, whether benefits create on-going

demands on employer assets, a plan may be an ERISA plan if the

employer “assumes ... responsibility to pay benefits on a regular

basis, and thus faces ... periodic demands on its assets that

create a need for financial coordination and control.” Fort

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Halifax, 482 U.S. at 12. While a one-time lump sum distribution of

severance benefits is not consistent with an ERISA plan, Sherrod,

33 F.3d at 639, the Sixth Circuit has held that plans which

permitted employees to choose between a lump sum payment and a

continued salary over a period of time, see Cassidy, 308 F.3d at

616-17, or which provided for ongoing medical, dental and life

insurance benefits in addition to a lump sum payment, see

Kolkowski, 448 F.3d at 848, were sufficient to satisfy the second

prong.

In Toohig v. PNC Financial Services Group, Inc., No. 1:10 CV

657 (unreported), 2010 WL 48244530 (N.D.Ohio Nov. 19, 2010), the

court held that the same severance plan at issue in the instant

case met the requirements for an ERISA plan. This court agrees

that the plain language of the Plan is sufficient to support the

determination that the Plan is an employee welfare benefit plan

governed by ERISA.

The Plan states that its purpose is “to maximize the

Corporation’s [National City’s] profitability and operating success

by attracting and retaining key managerial, operational and

executive employees and allowing them to focus on their

responsibilities in the event of, and following, a Change in

Control.” Plan, §1.2. The Plan grants severance benefits to

employees who are terminated by the “Surviving Entity” (in this

case, PNC) during the “Protection Period.” The “Protection Period”

is defined as the period of time between the “Effective Date” (the

date uninterrupted discussions or negotiations leading to the

change in control commenced) and the fifteen-month anniversary of

the implementation of the change in control. Plan, §2.1(i),(m),

(u). In this case, plaintiff alleges that the change in control

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occurred on or about December 31, 2008, and the fifteen-month

period concluded on or about March 31, 2010.

Plaintiff argues that this time limitation on the duration of

the Plan weighs against it being an ERISA plan. However, even a

plan of short duration can potentially require a significant level

of administrative oversight. In this case, the participants in the

Plan include any employees “whose job is assigned to a grade level

within the range of grade level 1 through grade level 7" except for

certain employees who are covered by an employment agreement,

severance agreement, or other specialized plan. Plan, §2.1(r). 

The term “employee” includes individuals employed on a full time,

part time or salaried basis. Plan, §2.1(j). Thus, the Plan

contemplates participation by a broad spectrum of employees.

The Plan provides that the Plan shall be administered by the

Compensation and Organization Committee of the Board or another

committee appointed by the Board to serve as the administering

committee of the Plan. Plan, §2.1(e); Article 14. If PNC fails to

pay severance compensation, a participant may make a claim for

severance benefits by submitting a written request to the

Committee. Plan, §5.1. The Committee must review the claim and

either approve or deny it. Plan, §5.2. The Plan also provides for

an appeal from the Committee’s determination. Plan, §§5.4-5.5. 

The Committee must determine whether the employee is a

“participant” who is eligible for benefits. The Committee must

learn whether the employee is assigned to a grade level 1 through

7, and whether the employee is covered by another employment

agreement, severance agreement or other specialized plan which

would preclude him from being a participant. See Plan, §2.1(r). 

Under §3.1 of the Plan, a participant is entitled to benefits if

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PNC terminates the participant’s employment during the Protection

Period, unless the participant is terminated for cause. The term

“Cause” is defined as the termination of employment due to: an

intentional act of fraud, embezzlement or theft in connection with

the participant’s employment; intentional wrongful damage to the

employer’s property; intentional wrongful disclosure of proprietary

information; intentionally engaging in competitive activity which

materially harmed the employer; an order from a federal or state

regulatory agency mandating the termination of the participant’s

employment; or conviction of a criminal offense involving

dishonesty, breach of trust, money laundering, or illegal drug

trafficking. Plan, § 2.1(c). Under §3.2 of the Plan, a

participant is entitled to benefits when the participant resigns

his employment where the participant has incurred a reduction in

his base salary, or where PNC requires the participant to change

his principal location of work to a location in excess of fifty

miles away from his principal location of work immediately prior to

the change in control. This eligibility determination requires

looking at the particular circumstances of each employee. See

Sherrod, 33 F.3d at 638 (“employer’s need to create an

administrative system may arise where the employer, to determine

the employees’ eligibility for and level of benefits, must analyze

each employee’s particular circumstances in light of the

appropriate criteria”)(quoting Kulinski v. Medtronic Bio-Medicus,

Inc., 21 F.3d 254, 257 (8th Cir. 1994)). 

The Plan also requires the Committee to make benefit

calculations that go beyond mere simple or mechanical

determinations. The Plan provides for bi-weekly payments for a

year, consisting of adding the participant’s base salary and

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incentive pay, divided by twenty-six. Plan, §4.1(a). To determine

a participant’s base salary, the Committee must ascertain the

participant’s annual salary, less any bonuses, incentive pay,

special awards, stock options or other stock compensation. Plan,

§2.1(a). The calculation of incentive pay also entails a complex

examination of numerous factors in each participant’s employment

history.3

 The Plan also provides for a lump sum payment equal to the

participant’s base salary multiplied by .25 in lieu of employee

benefits. Plan, §4.1(b). The term “Employee Benefits” is defined

to include benefits from “any and all employee retirement income

and welfare benefit policies, plans, programs or arrangements in

which the Participant is entitled to participate” including stock

options, stock purchases, stock appreciation, savings, pension,

retirement income or welfare benefit, deferred and incentive

compensation, insurance, and expense reimbursement. Plan, §2.1(k).

3 The term “Incentive Pay” means:

[A]n amount equal to the sum of (a) the higher of (i) the highest

aggregate annual incentive payment (excluding income realized from

the exercise of stock options, any benefits received from being

granted stock options or shares of restricted stock, income realized

from the sale of restricted stock and any profit sharing, matching

contributions or discretionary contributions made under any savings

plan but including, without limitation, awards pursuant to the

Management Incentive Plan) awarded for either of the two calendar

years immediately preceding the year in which the Effective Date

occurs or (ii) the target award for the individual for the year in

which the Effective Date occurs and (b) the higher of (i) the

highest incentive payment awarded pursuant to the Long Term Plans

for either of the plan cycles ending in the two calendar years

immediately preceding the year in which the Effective Date occurs or

(ii) the target award for the individual pursuant to the Long Term

Plans for the plan cycle ending in the calendar year in which the

Effective Date occurs. For purposes of this Paragraph 2.1(o),

“payment” includes moneys paid as well as any portion of any award

deferred.

Plan, §2.1(n).

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Thus, the Committee is required to examine each employee’s

circumstances and determine the retirement and insurance programs

in which the employee participates to calculate the lump sum

benefit.

The Plan further provides that the “Committee shall have full

power and authority to interpret, construe and administer this

Plan” and further that “its interpretations and construction

hereof, and actions hereunder, including the timing, form, amount

or recipient of any payment to be made hereunder, shall be binding

and conclusive on all persons for all purposes.” Plan, Article 14.

“The degree of discretion retained by the employer over

distribution of benefits is one important factor in deciding

whether a severance plan is an ERISA plan.” Cassidy, 308 F.3d at

616. Article 14 confers substantial discretion over the

distribution of benefits to the Committee. The first prong of the

Kolkowski test is met here. 

The second prong is also satisfied in this case, as the Plan

makes ongoing demands on PNC’s assets. The Plan provides for biweekly payments for a year, in addition to the lump sum payment in

lieu of employee benefits. Plan, §4.1(a) and (b). The Plan also

provides that a participant’s termination will not affect any

rights which the participant may have under the terms of any other

agreement or policy provided by PNC. Plan, §3.3. Participants

receiving financial counseling prior to the change in control

continue to receive financial counseling services during the

protection period. Plan, §2.1(k), (u). The ongoing nature of the

demands on PNC’s assets contemplated by the Plan is further

indicated by the fact that the Plan affords participants the right

to appeal the denial of benefits, and successful appellants may

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gain the right to the payment of severance benefits beyond the oneyear anniversary of the termination of the protection period. The

second branch of the Kolkowski test is met in this case.

Plaintiff has pleaded no facts which contradict the terms of

the Plan, or which would indicate that the Plan is not an ERISA

plan. The court concludes that plaintiff’s state law breach of

contract claim is preempted by ERISA, and defendants’ motion to

dismiss Count 1 is granted.

III. Count 3 - ERISA Claim for Benefits

A. Motion to Dismiss PNC, Allen, and John Doe Defendants

In Count 3, plaintiff asserts a claim for severance benefits

under the terms of the plan pursuant to §1132(a)(1)(B). Defendants

argue that defendants PNC, Allen, and the John Doe defendants

should be dismissed as to Count 3 because the Plan is the only

proper defendant to this claim. The proper defendant in an ERISA

action concerning benefits is the plan administrator. See

Riverview Health Institute LLC v. Medical Mutual of Ohio, 601 F.3d

505, 522 (6th Cir. 2010). Nominal designation as a plan

administrator is not sufficient in this context. Rather, an

entity, such as an employer, is not a proper party defendant in an

action concerning benefits unless the employer “‘is shown to

control administration of the plan.’” Gore v. El Paso Energy Corp.

Long Term Disability Plan, 477 F.3d 833, 842 (6th Cir.

2007)(quoting Daniel v. Eaton Corp., 839 F.2d 263, 266 (6th Cir.

1988)); Moore v. Lafayette Life Insurance Co., 458 F.3d 416, 438

(6th Cir. 2006).

Article 14 of the Plan states that “this Plan shall be

administered by the Committee.” PNC is not a Plan administrator,

and would ordinarily not be a proper party to plaintiff’s claim for

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benefits. However, PNC would arguably be liable under §5.6 of the

Plan to pay plaintiff’s reasonable attorneys’ fees and costs in the

event that plaintiff would prevail on his claim for benefits. In

the absence of additional information and argument, dismissal of

PNC on this ground would be premature, and PNC’s motion to dismiss

Count 3 against the PNC entities on this ground is denied.

In regard to defendant Allen, the complaint contains the

conclusory allegation that Allen is “a Plan Administrator” and “an

employee of PNC.” Complaint, ¶ 11. Even assuming that Allen holds

the title of “Plan Administrator,” the mere fact that a person

holds an office or position within a plan does not make that person

a fiduciary. 29 C.F.R. §2509.75-8, Q&A D-3. A holder of an office

or position of an employee benefit plan would be a plan fiduciary

if that person “has the final authority to authorize or allow

benefit payments in cases where a dispute exists as to the

interpretation of the plan provisions relating to eligibility for

benefits.” Id. Under the Plan, the term “Committee” is defined as

“the Compensation and Organization Committee of the Board or

another committee appointed by the Board to serve as the

administering committee of the Plan.” Plan, §2.1(e). The

Committee is responsible for making the final decision regarding

eligibility for Plan benefits. Plan, §5.5. The complaint fails to

allege sufficient facts to support a claim under §1132(a)(1)(B)

against defendant Allen, and the motion to dismiss him as a

defendant on this claim is well taken.

In regard to the John Doe defendants, plaintiff alleges that

the John Doe defendants were members of the Committee. They might

arguably be proper defendants to this claim as members of the

entity responsible for making final decisions under the Plan. See

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Bendaoud v. Hodgson, 578 F.Supp.2d 257, 275 (D. Mass. 2008)(members

of Plan committee who exercised discretionary authority in managing

plan’s assets were properly named fiduciary defendants). 

Defendants’ motion to dismiss the John Doe defendants on this

ground is denied. 

B. Sufficiency of §1132(a)(1)(B) Claim

Defendants have also moved to dismiss Count 3 for failure to

state a claim for relief. Defendants argue that plaintiff has

failed to plead facts sufficient to show that he is a participant

entitled to benefits under the Plan because he has not alleged that

his employment was terminated without cause by PNC or that he

resigned following a reduction in base salary or a change in job

location, as required under §§3.1 and 3.2 of the Plan. Plaintiff

does not dispute that he resigned his employment effective January

29, 2010. However, he argues that he was constructively discharged

by PNC due to the alleged acts of the defendants, and that this

constructive discharge constituted termination by PNC within the

meaning of the Plan. Although the theory of constructive discharge

is well accepted in the quasi-tort context of employment

discrimination actions, plaintiff’s claim for benefits under

§1132(a)(1)(B) is a contract claim, and the validity of that claim

depends on the terms of the Plan. 

Article 3 of the Plan states that “[i]n the event the

Surviving Entity terminates the Participant’s employment during the

Protection period, the Participant will be entitled to the

severance compensation provided by Article 4[.]” Plan, §3.1. 

Article 3 then specifies three circumstances in which a participant

whose employment is terminated by the Surviving Entity is not

entitled to benefits: the participant dies prior to the termination

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of employment; the participant becomes permanently disabled prior

to termination of employment; and participant’s employment is

terminated for “cause” as defined in §2.1(c) of the Plan. Plan,

§3.1(c). The Plan further provides:

The Participant may terminate employment with the

Surviving Entity during the Protection Period with the

right to severance benefits as provided in Article 4 upon

the occurrence of one or more of the following events

(regardless of whether any other reason for such

termination exists or has occurred, including without

limitation other employment):

(a) A reduction in the Participant’s Base Salary; or

(b) The Surviving Entity of the Participant requires the

Participant to have his principal location of work

changed, to any location which is in excess of 50 miles

from the location thereof immediately prior to the Change

in Control.

Plaintiff has alleged no facts showing that either of these

employment actions occurred in his case.

The record indicates that plaintiff pursued an appeal from the

denial of severance benefits to the Plan’s Appeal Committee. The

Committee noted §3.2 of the Plan and concluded that plaintiff “is

not eligible for benefits under the Plan because he resigned his

position when he submitted a letter of resignation on January 29,

2010, and neither of the events in Section 3.2 occurred.” Doc. 7,

Ex. D. Counsel for plaintiff then sent a letter to the Appeal

Committee dated June 16, 2010, in which he advanced the

constructive discharge theory and set forth the alleged

circumstances which he argued supported that theory. Doc. 7, Ex.

E. The Appeal Committee then conducted a second level review of

plaintiff’s claim and affirmed the denial of benefits by letter

dated July 27, 2010. Doc. 7, Ex. F. The Appeal Committee noted

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that plaintiff did not contend that either of the circumstances

described in §3.2 of the Plan were present, and that plaintiff

acknowledged that he resigned from his employment effective January

29, 2010. Ex. F., p. 2. The decision states: “While you suggest

that Mr. Caldwell was constructively discharged during the

protection period and thus forced to terminate his employment, the

Plan does not provide for severance benefits in the case of a

voluntary or constructive discharge except [in the case of a

reduction in base salary or a change in work location in excess of

fifty miles].” Ex. F, p. 2. The Appeal Committee determined that

plaintiff “voluntarily terminated employment with National City/PNC

under circumstances that do not entitle him to severance benefits

under the explicit terms of the Plan.” Ex. F, p. 2. 

Under ERISA, every employee benefit plan must be established

and maintained pursuant to a written instrument specifying the

basis on which payments are to be made from the plan. 29 U.S.C.

§§1102(a)(1) and 1102(b)(4); Kennedy v. Plan Administrator for

DuPont Savings and Investment Plan, 555 U.S. 285, 300 (2009). The

plan administrator is obliged to act in accordance with the

documents and instruments governing the plan insofar as such

documents and instruments are consistent with the provisions of

ERISA. 29 U.S.C. §1104(a)(1)(D). A plaintiff’s claim under

§1132(a)(1)(B) “therefore stands or falls by ‘the terms of the

plan[.]’” Kennedy, 555 U.S. at 300 (quoting §1132(a)(1)(B)).

Federal common law rules of contract interpretation apply in

construing an ERISA plan, and a plan’s provision must be

interpreted “according to their plain meaning, in an ordinary and

popular sense.” Perez, 150 F.3d at 556. Courts are not permitted

to rewrite contracts by adding additional terms. Id. at 557. In

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developing federal common law rules of contract interpretation,

courts take direction from both state law and general contract law

principles. Id. at 556.

The Plan in this case states that the “validity,

interpretation, construction and performance of this Plan will be

governed by and construed in accordance with the substantive laws

of the State of Delaware.” Plan, Article 12. Thus, in addition to

applying the federal common law of ERISA, this court will look for

guidance to Delaware law. Under both federal and Delaware law, the

interpretation and construction of a contract is a matter of law

for the court. See Detroit Radiant Products Co. v. BSH Home

Appliances Corp., 473 F.3d 623, 627 (6th Cir. 2007); Paul v.

Deloitte & Touche, LLP, 974 A.2d 140, 145 (Del. 2009). Under

Delaware law, a contract’s construction should be that which would

be understood by an objective, reasonable third party. Osborne ex

rel. Osborn v. Kemp, 991 A.2d 1153, 1159 (Del. 2010). When a

contract is clear and unambiguous, courts will give effect to the

plain meaning of the contract’s terms and provisions. Id. at 1159-

60. If a contract is unambiguous, extrinsic evidence may not be

used to interpret the intent of the parties, to vary the terms of

the contract or to create an ambiguity. Eagle Industries, Inc. v.

DeVilbiss Health Care, Inc., 702 A.2d 1228, 1232 (Del. 1997). 

Absent some ambiguity, Delaware courts will not destroy or twist

contract language under the guise of construing it. Rhone-Poulenc

Basic Chemicals Co. v. American Motorists Ins. Co., 616 A.2d 1192,

1195 (Del. 1992). A party will be bound by the plain meaning of a

clear and unequivocal contract “‘because creating an ambiguity

where none exists could, in effect, create a new contract with

rights, liabilities and duties to which the parties had not

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assented.’” Id. at 1195-96 (quoting Hallowell v. State Farm Mut.

Auto. Ins. Co., 443 A.2d 925, 926 (Del. 1982)). 

 “A contract is not rendered ambiguous simply because the

parties do not agree upon its proper construction.” Rhone-Poulenc,

616 A.2d at 1196. “Rather, a contract is ambiguous only when the

provisions in controversy are reasonably or fairly susceptible of

different interpretations or may have two or more different

meanings.” Id. 

Under the Plan, a participant is entitled to benefits if “the

Surviving Entity terminates the Participant’s employment during the

Protection Period” for grounds other than cause. Plan, §3.1

(emphasis supplied). This language clearly indicates that

termination of employment by the employer is required to qualify

for benefits under this section. No reference is made in this

section to constructive discharge or the termination of employment

by the employee due to adverse employment actions by the employer.

In contrast, §3.2 provides that a “Participant may terminate

employment with the Surviving Entity during the Protection period

with the right to severance benefits” only in two circumstances:

(a) a reduction in the participant’s base salary, or (b) the

assignment of the participant to a new principal work location over

fifty miles away. Plan, §3.2(a) and (b). These two circumstances

fall within the class of adverse employment actions which might

arguably support a constructive discharge. Logic dictates that if

severance benefits were to be made available following employee

resignations in response to other types of adverse actions by the

employer, those actions would have been listed here. 

Significantly, §3.2 makes no reference to any other type of adverse

employment action by the employer.

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The doctrine of expressio unius est exclusio alterius, used as

a tool of contract interpretation, provides that where specific

items are listed in a document such as a contract, any item not so

listed is typically thought to be excluded. See Smart v. Gillette

Co. Long-Term Disability Plan, 70 F.3d 173, 179 (1st Cir.

1995)(applying doctrine to ERISA claim, and holding that plaintiff

was not entitled to long-term disability benefits where such

benefits were not listed in severance agreement); see also

Seidensticker v. Gasparilla Inn, Inc., No. 2555-CC (unreported),

2007 WL 4054473 (Del.Ch. Nov. 8, 2007)(applying doctrine to

contract dispute). The fact that only two types of adverse

employment actions are listed in §3.2 indicates that the drafters

of the Plan intended to exclude resignations due to other types of

adverse employment actions as a basis for severance benefits. 

Regardless of whether this court were to apply a discretionary

standard of review of the Appeal Committee’s decision or the

heightened de novo standard, see Firestone Tire & Rubber Co. v.

Bruch, 489 U.S. 101 (1989), the Appeal Committee’s interpretation

of the Plan was the only reasonable interpretation as a matter of

law. In light of the plain and clear language of the Plan,

plaintiff has failed to state a claim under §1132(a)(1)(B) which

would entitle him to relief, and defendants’ motion to dismiss

Count 3 is granted.

IV. Count 4 - §1140 Claim

Plaintiff alleges that defendants engaged in coercion,

harassment and discrimination against him with the purpose of

interfering with his attainment of ERISA benefits and with the

purpose of retaliating against him for engaging in protected

activities in violation of 29 U.S.C. §1140. Complaint, ¶¶ 86-87. 

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Section 1140 of ERISA provides:

It shall be unlawful for any person to discharge, fine,

suspend, expel, discipline, or discriminate against a

participant or beneficiary for exercising any right to

which he is entitled under the provisions of an employee

benefit plan ... or for the purpose of interfering with

the attainment of any right to which such participant may

become entitled under the plan[.]

§1140.

This provision of ERISA is “aimed primarily at preventing

unscrupulous employers from discharging or harassing their

employees in order to keep them from obtaining vested pension

rights.” West v. Butler, 621 F.2d 240, 245 (6th Cir. 1980). 

Section 1140 “offers protection against two types of conduct:

adverse action taken because a participant availed himself of an

ERISA right (an “exercise” or “retaliation” violation), and

interference with the attainment of a right under ERISA (an

“interference” violation).” Coomer v. Bethesda Hospital, Inc., 370

F.3d 499, 506 (6th Cir. 2004). To state a claim under §1140, the

plaintiff must show that an employer had a specific intent to

violate ERISA., see Hamilton v. Starcom Mediavest Group, Inc., 522

F.3d 623, 628 (6th Cir. 2008); Smith v. Ameritech, 129 F.3d 857,

865 (6th Cir. 1997), and requires that the discrimination or other

adverse job action “affect the individual’s employment relationship

in some substantial way.” West, 621 F.2d at 245-46.

In the absence of direct evidence, courts apply the burdenshifting approach utilized in Texas Dep’t of Community Affairs v.

Burdine, 450 U.S. 248 (1981). Hamilton, 522 F.3d at 628. The

elements of an interference claim under §1140 are (1) that there

was prohibited employer conduct (2) taken for the purpose of

interfering (3) with the attainment of any right to which the

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employee may become entitled. Marks v. Newcourt Credit Group,

Inc., 342 F.3d 444, 455 (6th Cir. 2003).

Plaintiff alleges that defendants engaged in conduct

prohibited under ERISA with the purpose of interfering with his

receipt of severance benefits. Plaintiff alleges that he was

assigned to three branches, two of which were in depressed areas,

and that he was unable to meet his loan quota. Complaint, ¶¶ 25-

26. He was given formal warnings and ultimately placed on

probation due to his failure to meet his loan goals. Complaint, ¶¶

27, 29-30, 32, 45-46. Plaintiff does not allege in the complaint

that he was in fact meeting his goals, or that the probation was

unwarranted. In fact, it is stated in the complaint that plaintiff

acknowledged on January 15, 2010, that he was not meeting the terms

of his probation. Complaint, ¶ 47. Instead, plaintiff complains

that he was not put on probation until December 10, 2009, that he

was not terminated in a timely manner after he failed to meet the

terms of his probation, and that his supervisors kept rescheduling

meetings concerning the status of his probation. Complaint, ¶¶ 44-

49. When his termination was not forthcoming, plaintiff resigned

on January 29, 2010.

Thus, the main gist of plaintiff’s complaint is that PNC

interfered with his right to severance benefits because PNC did not

terminate his employment during the protection period, where

termination by PNC would have made him eligible to receive

severance benefits. However, PNC had no obligation under ERISA to

terminate plaintiff’s employment; rather, PNC could elect instead

to keep plaintiff on its payroll for the duration of the protection

period.

As a matter of law, keeping plaintiff on the payroll did not

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constitute an adverse employment action and was not conduct

prohibited under ERISA. See Garavuso v. Shoe Corps. of America

Industries, Inc., 709 F.Supp. 1423, 1432 (S.D.Ohio 1989), aff’d 892

F.2d 79 (6th Cir. 1989)(extending plaintiff’s layoff date and

keeping him on payroll past date he would have been eligible for

severance pay not an adverse job action under §1140); see also

Bodine v. Employers Casualty Co., 352 F.3d 245, 250-51 (5th Cir.

2003)(employer’s failure to terminate employees did not constitute

discrimination or unscrupulous conduct required for §1140 action);

Curby v. Solutia, Inc., 351 F.3d 868, 872 (8th Cir. 2003)(employee

cannot submit a resignation and then claim the employer’s

acceptance of the resignation is an adverse employment action);

Perdue v. Burger King Corp., 7 F.3d 1251, 1255 (5th Cir.

1993)(prohibitions under §1140 do not extend per se to an employer

who retains an employee so as to avoid payment of severance

benefits under an ERISA plan); Varhola v. Doe, 820 F.2d 809, 816-17

(6th Cir. 1987)(decision to retain some employees while allowing

others to retire with shutdown pensions is not prohibited conduct

under §1140); Stout v. Bethlehem Steel Corp., 957 F.Supp. 673 , 695

(E.D.Pa. 1997)(“Offering a job, or the chance to continue

employment, has never been prohibited employer conduct, and it

would be a ludicrous distortion of ERISA to make it so.”).

Plaintiff also alleges that on two occasions in August of

2009, his supervisors requested that he voluntarily retire from his

employment with PNC, but that plaintiff refused to do so. 

Complaint, ¶¶ 31, 33. Plaintiff informed his supervisors that it

was his opinion that if his employment was terminated, he would be

entitled to severance benefits. Complaint, ¶ 31. Plaintiff does

not allege that his resignation, which occurred much later on

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January 29, 2010, was in any way related to or coerced by these

requests. The record includes a letter dated September 1, 2009,

from plaintiff’s counsel, in which counsel alleges that “National

City apparently wishes to force Mr. Caldwell to retire after his

lengthy and successful career with the company” and advocating that

plaintiff receive severance benefits. Doc. 7, Ex. G. John R.

Johnson, Chief Counsel for PNC, responded by letter dated October

9, 2009, (prior to plaintiff’s resignation in January of 2010) in

which he stated that “we disagree with your contention that he was

forced to retire, and both your subsequent letters and his

continued employment bear out our position in that regard.” Doc.

7, Ex. H. Plaintiff also alleges in his complaint that PNC kept

putting off meetings concerning plaintiff’s performance issues and

did not terminate his employment. Complaint, ¶¶ 47-49. The facts

alleged in the complaint suggest that plaintiff decided to resign

within the protection period and rely on his constructive discharge

argument as a basis for his claim to benefits when it appeared that

PNC was not going to terminate his employment. The complaint is

devoid of any facts sufficient to state a claim that plaintiff’s

resignation was coerced by the defendants.

Plaintiff claims that his resignation constituted a

constructive discharge which was sufficient to constitute a

“discharge” under §1140. Even assuming that the constructive

discharge theory may apply to a claim under §1140, the complaint

fails to allege facts showing that the defendants engaged in

prohibited conduct under ERISA which created intolerable working

conditions, as perceived by a reasonable person, with the intention

of forcing plaintiff to quit. See Logan v. Denny’s, Inc., 259 F.3d

558, 568-69 (6th Cir. 2001). 

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The complaint also fails to allege facts sufficient to show

that plaintiff had any right to expect severance benefits under the

Plan. At the time of plaintiff’s resignation, he had no vested

right to severance benefits with which the defendants could

interfere. Perdue, 7 F.3d at 1255. He could only become entitled

to benefits if his employment was terminated by PNC without cause,

or if he resigned because of a reduction in base salary or

relocation of his principle job location. None of these events had

occurred at the time of plaintiff’s resignation. As indicated

above, resignation due to some other action by PNC was insufficient

under the plain terms of the Plan to constitute a termination which

would entitle plaintiff to severance benefits. PNC was not

obligated under the terms of the Plan or under ERISA to terminate

plaintiff’s employment during the protection period. Plaintiff has

failed to allege sufficient facts to support an interference claim

under §1140.

Plaintiff also alleges that the defendants engaged in

retaliatory conduct in response to plaintiff’s protected activity

under ERISA. To establish a prima facie case of retaliation under

§1140, the employee must show that (1) he was engaged in activity

that ERISA protects; (2) he suffered an adverse employment action;

and (3) a causal link exists between the protected activity and the

employer’s adverse action. Hamilton, 522 F.3d at 628. If

plaintiff establishes a prima facie case, the burden shifts to

defendants to articulate a legitimate reason for the adverse

employment action. The employee must then show that the

articulated reason was a pretext for retaliation. Id. Efforts to

seek benefits are protected activities. Id.

Plaintiff alleges in conclusory fashion that from September 1,

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2009 through January 29, 2010, he engaged in protected activity by

corresponding with his supervisors, Don Guilbert and Ron Byers,

with Mr. Johnson, and with Sally Weinkam, Human Resources Officer

for PNC, regarding the status of plaintiff’s employment,

plaintiff’s disparate treatment, and PNC’s interference with

plaintiff’s rights under the Plan. Complaint, ¶ 43. The record

does include the September 1, 2009, letter from plaintiff’s counsel

stating that benefits under the Plan were “appropriate” in

plaintiff’s case. Mr. Johnson responded in his letter of October

9, 2009, that since plaintiff had not been terminated, his salary

had not been reduced, and his job location had not been moved, he

was not entitled to benefits under the Plan “at this time.” Doc.

7, Ex. H. The mere expression of the correct opinion that

plaintiff was not entitled to benefits under the Plan because his

employment had not been terminated was not an adverse action under

§1140.

Plaintiff does not specifically allege in the complaint which

conduct on the part of the defendants was in retaliation for this

expression of an interest in benefits. Three months after this

letter was sent, plaintiff was placed on probation. However, in

light of his acknowledged failure to meet his loan goals, he does

not allege in the complaint that this probation was unwarranted. 

In fact, he alleges that PNC should have terminated his employment

for failure to meet the terms of his probation. Complaint, ¶ 47. 

Thus, the main gist of plaintiff’s retaliation claim also appears

to be that PNC retaliated against him for seeking benefits under

the Plan by failing to terminate his employment. However, the

refusal to terminate plaintiff’s employment does not qualify as an

adverse employment action. Plaintiff has failed to allege

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sufficient facts to support a retaliation claim under §1140.

Defendants also argue that plaintiff’s §1140 claim should be

dismissed because it would not afford plaintiff the relief that he

seeks. Section 1140 is enforced through 29 U.S.C. §1132(a)(3),

which authorizes a civil action by a participant “to obtain other

appropriate equitable relief” to redress the §1140 violations. 

Alexander v. Bosch Automotive Systems, Inc., 232 Fed.Appx. 491, 496

(6th cir. 2007). The term “equitable relief” refers to “those

categories of relief that were typically available in equity.” 

Mertens v. Hewitt Assocs., 508 U.S. 248, 256 (1993). Traditional

equitable remedies include certain kinds of injunctions and

restitution, but not compensatory damages, which are “the classic

form of legal relief.” Id. at 225. An injunction to compel the

payment of money past due under a contract or specific performance

of a past due monetary obligation was typically not available in

equity. Great-West Life & Annuity Ins. Co. v. Knudson, 534 U.S.

204, 210-11 (2002). Suits seeking (whether by judgment,

injunction, or declaration) to compel the defendant to pay a sum of

money to the plaintiff are suits for “money damages.” Id. at 210;

see also Alexander, 232 Fed.Appx. at 496-502 (plaintiffs could not

recover plant closure benefits under §1140 since the relief sought

was not the type of traditional equitable relief authorized under

§1132(a)(3). Back pay is also a legal remedy not available under

§1132(a)(3). Millsap v. McDonnell Douglas Corp., 368 F.3d 1246,

1252-60 (10th Cir. 2004).

In his complaint, plaintiff requests a declaration that he was

constructively discharged and that defendants violated the terms of

the Plan by refusing to pay him severance benefits. He also

requests an order directing defendants to pay him benefits under

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the Plan. Although he does not assert a claim for back pay in his

complaint, he argues in his memorandum contra the motion to dismiss

that he is also seeking back pay. However, the benefits he seeks

all amount to money damages in the form of severance payments under

the Plan. The relief plaintiff seeks is not available for a §1140

violation, as enforced through §1132(a)(3).

For the foregoing reasons, the allegations in the complaint

fail to state a claim for relief under §1140, and defendants’

motion to dismiss that claim is well taken.

V. John Doe Defendants

In regard to Count 2, the court notes that this claim is

asserted against PNC, and does not specifically name the Plan,

defendant Allen or the John Doe defendants as parties to that

count. Accordingly, the John Doe defendants and defendant Allen

will be dismissed as parties to this action.4

VI. Conclusion

In accordance with the foregoing, defendants’ motion to

dismiss Counts 1, 3, 4 and 5 of plaintiff’s complaint is granted,

and those counts are hereby dismissed. In accordance with this

order, defendants National City Corporation Amended and Restated

Management Severance Plan, Kerry Allen, and the John Doe defendants

are hereby dismissed as parties on all of plaintiff’s claims.

Date: December 19, 2011 s/James L. Graham 

 James L. Graham

 United States District Judge

4 The court also notes that on August 24, 2011, the magistrate judge issued

an order for plaintiff to show cause why the John Doe defendants should not be

dismissed without prejudice under Rule 4(m) for failure to obtain service, and

plaintiff has not responded to that order. Accordingly, dismissal of the John

Doe defendants is warranted on this ground as well.

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